United States v. Coulter

LatimeR, Judge

(dissenting):

I dissent.

This decision unnecessarily restricts the right of the convening authority to use available staff officers to assist him in gathering information touching solely on matters of clemency. I find nothing in our holding in United States v. Gordon, 1 USCMA 255, 2 CMR 161, which requires that we place our stamp of disapproval on the method employed in this instance. As reported in today’s opinion, we stated the following rule in that case:

“Again, the right to an impartial review is an important right which must be recognized in the military judicial system and an accused is entitled to have the record reviewed and the limits of his sentence fixed by one who is free from any connection with the controversy.”

That language from the Gordon case was directed toward a convening authority who should, of course, have an open mind on the guilt or innocence of the accused and who should be unbiased as to the true measure of punishment. That rule, however, was not intended to circumscribe him in collecting information necessary to enable him to make an intelligent appraisal of rehabilitation possibilities. He is required to consider the record and affirm the findings and such part of the sentence as he believes to be fair and just, *664and the most satisfactory way to determine the appropriateness of a sentence is by a thorough post-trial investigation. For that purpose, the convening authority should not be limited to the record nor should he be hedged in by technical rules of procedure. On the contrary he should be permitted to pursue all reasonable avenues of information. I suppose that up to this point there is no important disagreement between my associates and myself. The breach appears to open when we consider the personnel who may furnish the information.

Article 6 of the Uniform Code of Military Justice provides as follows:

“(c) No person who has acted as member, law officer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case shall subsequently act as a staff judge advocate or legal officer to any reviewing authority upon the same case.”

Obviously, if the convening authority in this case had required that trial counsel act as his staff judge advocate to review the record, within the meaning of that Article, then there would be prejudicial error. I, however, do not find that any disqualified officer acted in that capacity. It must be borne in mind that the Code does not require that the convening authoxfity of a special court-martial submit a record of trial to a staff judge advocate or to a staff legal officer. He may act with, or without, the benefit of legal advice. Article 60 of the Code, 50 USC § 647, provides as follows:

“After every trial by court-martial the record shall be forwarded to the convening authority, and action thereon may be taken by the officer who convened the court, an officer commanding for the time being, a successor in command, or by any officer exercising general court-martial jurisdiction.”

Article 65(6), 50 USC § 652, supplements that provision by providing:

“Where the sentence of a special court-martial as approved by the convening authority includes a bad-conduct discharge, whether or not suspended, the record shall be forwarded to the officer exercising general court-martial jurisdiction over the command to be reviewed in the same manner as a record of trial by general court-martial or directly to the appropriate Judge Advocate General to be reviewed by a board of review. If the sentence as approved by an officer exercising general court-martial jurisdiction includes a bad-conduct discharge, whether or not suspended, the record shall-be forwarded to the appropriate Judge Advocate General to be reviewed by a board of review.”

The duty to have the record reviewed by a staff judge advocate, when a special court-martial imposes a punitive discharge as part of a sentence, was placed primarily on the back of the officer exercising general court-martial jurisdiction and not on the back of the convening authority. From the terms of the Articles it would appear Congress intended that the review of the record by a staff judge advocate be made by a headquarters which normally has that officer assigned to it. Lower headquarters are permitted to rely on the officer exercising general court-martial jurisdiction to have the record reviewed by legally competent personnel. In this instance, the review was made by the appropriate officer on the staff of the officer exercising general court-martial jurisdiction and he was in no manner disqualified by statute or otherwise.

It is my belief that the review contemplated by Article 6, supra, deals primarily with a review of the record to determine if it is free from legal errors or irregularities. The only way in which the sentence would be involved in the review is when, and if, it is illegal as a matter of law. If it is not illegal, its appropriateness must be determined by the commander, not by the staff officer. Subparagraphs 856 and c of the Manual for Courts-Martial, United States, 1951, provide as follows:

“The staff judge advocate or legal officer to whom a record of trial is referred for review and advice will submit a written review thereof to the convening authority. The review *665will include a summary of the evidence in the case, his opinion as to the adequacy and weight of the evidence and the effect of any error or irregularity respecting the proceedings, and a specific recommendation as to the action to be taken. Reasons for both the opinion and the recommendation will be stated. The convening authority may direct his staff judge advocate or legal officer to make a more comprehensive written review or supplementary oral or written reviews or reports.
“Ordinarily, the convening authority should accept the opinion of his staff judge advocate or legal officer as to the effect of any error or irregularity respecting the proceedings, ■as to the adequacy of the evidence, and as to what sentence can legally he approved. However, it is within the particular province of the convening authority to weigh evidence, judge the credibility of witnesses, determine controverted questions of fact that may have been raised in the record, and to determine what legal sentence should be approved.”

A cursory inspection of the exhibits in ■the record establishes, without contradiction, that neither of the two officers involved in the post-trial investigations reviewed the record within the fair in-tendment of those subsections of the ■Manual. Lieutenant Sperline, who, in his communication identified as “Post-Trial Clemency Interview,” designates himself as “Asst Staff Judge Advocate (acting),” conducted a detailed and exhaustive post-trial clemency interview. When the court-martial was originally ■ordered to convene, he was designated as assistant defense counsel. He had been relieved prior to trial and so he was not disqualified to inquire into the legal errors in the record. However, he did not do so. His entire efforts were channeled in aid of sentence. The contents of his report go solely to the •question of whether clemency, in the form of a suspension of the bad-conduct ■discharge, should be exercised. The subjects he reported on consist of the accused’s family life, his intelligence, his employment record, his pattern of behavior, his early life difficulties, his complexes, and his previous convictions. That officer ended with a recommendation that the accused be given one more chance to make good in the service by suspending execution of the bad-conduct discharge. Lieutenant Jungman, who signed an uncaptioned report, designated himself as “Staff Judge Advocate.” The record does not indicate the staff assignment of either officer; nevertheless, I am assuming that they were assigned to the staff of the convening authority. Lieutenant Jungman went no further than to note disapproval of the recommendation for clemency made by the officer who conducted the post trial interview and in support of his position stated that the accused had been convicted of four offenses during the twelve months immediately preceding the time of this offense, and that the record of the accused was such that the bad-conduct discharge should not be suspended. The base for that statement is found in the record of previous convictions introduced in evidence, and, it was before the convening authority for his consideration independent of the statement. The information in the exhibit of previous convictions was more damning than that contained in the communication from Lieutenant Jung-man as the nature of the previous offenses was shown in the former and not in the latter. It is of interest to note that three out of the four convictions involved assaults and disrespectful conduct toward superior noncommis-sioned officers.

The convening authority was not required to submit the record of trial to his legal counsel and he certainly did not do so for legal purposes. As previously developed, I must assume that he requested information as to matters of clemency from legal members of his own staff. The issue thus narrows t.o the single question of whether a convening authority, who need not obtain legal advice on a record of trial, is limited in the sources from which he may obtain information upon which to form an opinion as to the appropriateness of a particular sentence. I know of no reason why the convening authority should not be permitted to obtain information *666from all reliable sources. If Article 6 (e), supra, is to be interpreted as suggested in the prevailing opinion, then a member of the court, the law officer, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, and investigating officer are precluded from making clemency recommendations either for or against an accused in a case in which they participated. I am certain it has been standard practice in the military for many years for members of courts to express to convening authorities that they give consideration to reducing sentences or to exercising some form of clemency or commutations. While I believe court members should fix the length of the sentence and not rely on the convening authority to reduce, I know of no good reason why it is improper for them to recommend that he take action which cannot be taken by the court-martial. Neither do I find any good reason to deny others who are familiar with a case from submitting their views. By way of illustration, an investigating officer, a defense counsel, or a court member may be in a situation where they can be of inestimable value in helping to determine a fair and just sentence. In some instances they may be favorable to the accused. In others, their help may result in a showing adverse to him. But in either event, they should not be rendered deaf, dumb, and mute because they are familiar with the litigation. After all, the purpose of a convening authority should be to determine the man’s value to the service, his rehabilitation possibilities, and other factors which influence punishment.

While the accused failed to benefit from the post-trial investigation, if the so-called doctrine of general prejudice is to be applied in this situation, I am wondering what the decision might be if one of the members disqualified to act as a staff judge advocate was to write a letter recommending leniency. I suppose in that situation, as here, the accused would be granted a new trial tore-litigate his guilt or innocence about which there is no dispute. Again I dissent from a result which grants an accused a new trial when by every known standard he is entitled, at the best, to no-more than a reconsideration of the sentence.